Ctrl St Hlth & Life v. Brewer

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 4, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-61079
Summary Calendar
CENTRAL STATES HEALTH & LIFE
COMPANY OF OMAHA, NEBRASKA,
Plaintiff-Appellee,
versus
HERBERT LEON BREWER, III,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Norther District of Mississippi
Eastern Division
USDC No. L-02-CV-564
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Herbert Leon Brewer, III, appeals the district court’s post-
judgment determination that Central States Health & Life Company
of Omaha, Nebraska was only required to pay simple interest on

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No. 03-61079
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1 Because this is a diversity case, we apply Mississippi
substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).
No Mississippi court has ruled on the precise issue here, so we
make an Erie guess as to what the Mississippi Supreme Court would
likely do. Herrmann Holdings Ltd. v. Lucent Tech.s, Inc., 302
F.3d 552, 558 (5th Cir. 2002).
disability benefits due to Brewer.1 The benefits are owed
pursuant to an insurance policy providing that:
Any claims payable under the terms of the policy will
be paid within 45 days after receipt by us of due
written proof of loss.
If we do not comply with the requirements of this
provision we will pay interest on accrued benefits at a
rate of 1-1/2% per month on the amount of the claim
until it is finally settled or resolved.
(Emphasis added.) We agree with the district court that this
provision calls for the payment of simple interest.
The policy contemplates interest only on accrued benefits or
the amount of the claim. It says nothing of any interest owing
on that interest or of any interest owing on the balance due.
Cf., Exxon Corp. v. Crosby-Mississippi Resources, Ltd., 40 F.3d
1474, 1488 (5th Cir. 1995) (holding that a contract provision
that “the unpaid balance shall bear interest monthly at the rate
of twelve percent (12%) per annum” (emphasis added) required
compound interest). We note that this is in accord with the
general common law preference for simple interest absent express
authorization otherwise. See Stovall v. Illinois Central Gulf

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No. 03-61079
-3-
Railroad Co., 772 F.2d 190, 192 (5th Cir. 1984). We have no
reason to believe the Mississippi Supreme Court would not follow
the general common law rule.
AFFIRMED.

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